Will judge reverse $36M verdict against Orlando-area abortion doctor?

August 13, 2011|By Anthony Colarossi, Orlando Sentinel

An Orange Circuit judge is likely to decide soon whether to reverse a $36.7 million jury award in a medical-malpractice case decided last month against a suspended Orlando-area abortion doctor and his clinic, the Orlando Women's Center.

An Orange County jury awarded $18.7 million in compensatory damages and a total $18 million in punitive damages against James Scott Pendergraft IV and the Orlando Women's Center, where he was listed in court papers as one-time medical director.

Pendergraft's attorney, Robert Nesmith, filed a post-trial motion early this month to set aside the verdict for the monetary damages. He also requested a new trial. Nesmith would not comment with the case still pending.

Pendergraft, listed as founder of the Orlando Women's Center on its website and as the "business owner" by someone answering the phone at a clinic location, could not be reached for comment.

State Department of Health records show Pendergraft cannot currently practice medicine in Florida.

"His license status is currently suspended," DOH spokeswoman Jennifer Hirst said. However, it is not revoked, and all details behind the license suspension were not immediately available.

The lawsuit involves a woman, identified as C.H. in court documents, who went to the Orlando Women's Center on Nov. 15, 2001, to terminate what she thought was a 16- to 20-week pregnancy. Staff at the center determined she was 22.3 weeks pregnant, according to the complaint and other court records.

Staff at the clinic gave her 12 doses of Cytotec and a single dose of RU-486 during an 11- or 12-hour period to induce labor. Neither Pendergraft nor another physician at the facility, Dr. Randall B. Whitney, personally evaluated, examined or treated the woman, the lawsuit says.

At about 1 a.m. Nov. 16, "C.H. was instructed to and/or allowed to leave the Orlando Women's Center while in active labor," according to the claim.

She then went to the emergency room at Orlando Regional Medical Center in "active labor" and gave birth by cesarean section "to a viable female child," the lawsuit says.

That baby, identified in court documents as J.F., was "born prematurely and has suffered catastrophic and permanent bodily injuries, impairment, disability, [and] disfigurement." Expenses related to the child's care and treatment formed the basis of the lawsuit.

In his motion to set aside the verdict, Nesmith argues that "strict liability" should not have applied in this case. "This is a standard negligence case," he wrote.

His argument covers Florida's statute governing so-called partial-birth abortions, while maintaining the procedure performed on C.H. was not an attempted partial-birth abortion.

"By Florida statutes and previous cases, the fetus was not viable when the mother presented to Orlando Women's Center and thus [the statute] does not apply in this case and therefore there cannot be strict liability," Nesmith wrote. "Strict liability statutes … only apply to persons," he also argued. "A fetus is not a person."

Because the woman came to the center to have an abortion, "survival of the plaintiff's child was never anticipated under this arrangement," Nesmith argued.

He also claims the judge made an error in not allowing the defendant to show "the patient was at fault." Nesmith says C.H. was negligent "for bolting from the Orlando Women's Center." She was not asked or forced to leave the clinic, and had she stayed "the abortion procedure would have been completed …."

Nesmith also cited an exhibit involving Pendergraft's finances that was not admitted as evidence but was mistakenly brought back to the jurors to be reviewed during their deliberations of punitive damages.

The judge expressed "concern" several times about this mishap, and the exhibit was ultimately retrieved from the jury, according to the motion.

"This is clearly reversible error and prejudicial to the defendants and requires the court to declare a mistrial for the entire case," Nesmith wrote.

In a written response filed in the case, the opposing side's attorney, Jennifer Gentry Fernandez, argued that Pendergraft and the center are liable "strictly for the consequences of their illegal acts — the catastrophic injuries to plaintiff's daughter, J.F."

Fernandez further called Nesmith's argument placing fault with the mother and the hospital "untenable and morally reprehensible." And she called the fetal-viability issue "misplaced."

"J.F. was viable," she noted. "We know this because within [four] hours of her mother being ejected from Dr. Pendergraft's abortion clinic by the medical assistant left 'in charge' of second trimester inductions, J.F. was delivered, alive and capable of life outside the womb — the very definition of 'viability' the jury received."

Fernandez also argued that the exhibit mistakenly sent back to the jurors does not warrant a new trial.

Judge John Marshall Kest, who is handling the case, will now decide whether to grant Nesmith's motion or confirm the jury verdict and awards.

In 2007, the Florida Board of Medicine voted to suspend Pendergraft's license for one year and fine him $10,000 for illegally performing a 2005 third-trimester abortion.

Board members concluded that Pendergraft failed to meet state requirements in 2005 when he performed an abortion on a woman 27 weeks to 28 weeks pregnant. Such procedures are permitted only if done in a hospital and with written certification from two doctors that the woman's life is in danger.